PIAC reiterates FairPlay opposition
OTTAWA – A representative of Canada’s Business Coalition for Balanced Copyright – an alliance of Canadian telecommunications providers including Bell, Rogers, Vidéotron and others – says while its members support a regime that rewards and protects creators, facilitates access to creative content, makes investment in technology and supports educational research, the removal of exceptions added to Canada’s Copyright Act in 2012 would put hundreds of millions of dollars at risk.
“[The] exceptions added to the Copyright Act in 2012 were necessary to eliminate uncertainty that would restrict or inhibit the development of new products and services,” Jay Kerr-Wilson, a partner with Fasken, told the Standing Committee on Industry, Science and Technology on Monday. “Reducing or eliminating these exceptions will put hundreds of millions of dollars at risk in investments, and will cause disruptions in the roll out of legitimate new services that would otherwise provide copyright owners more opportunity to earn more revenue by giving Canadians more access to more content.”
Kerr-Wilson also said the coalition opposes the creation of new copyright levies that would be imposed on ISPs or other intermediaries in an attempt to create new sources of revenue for Canadian creators and artists.
“Requiring ISPs to make content-specific payments is a violation of network neutrality and we believe the Copyright Act is not the appropriate statute for promoting Canadian cultural industries,” he said. “Obligations under international treaties require any benefit granted to Canadian copyright owners also be provided to non-Canadians when their works are used in Canada. The government has more appropriate tools at its disposal to promote Canadian content, and using these tools allows measures to be targeted to specific creators in a way the Copyright Act cannot. Forcing Canadians to pay another fee for lawful services could very well be considered double dipping.”
Just as Parliament recognized the need to create exceptions in 2012 to apply to the reproductions required to operate the internet, the BCBC, according to Kerr-Wilson, believes a new exception is required to eliminate the uncertainty regarding the reproductions of information analysis.
“We recommend additional improvement to the notice and notice regime. In Bill C-86, the Budget Implementation Act, the government introduced amendments to prohibit the inclusion of settlement demands in infringement notices. BCBC strongly supports this proposal but believes additional amendments are necessary to protect consumers and to give ISPs the tools they need to stop these settlement notices.”
Kerr-Wilson says while Bill C-86 states ISPs aren’t required to forward notices containing settlement demands to subscribers, the bill contains no useful deterrent to dissuade rights holders or claimants from including settlement demands in copyright notices.
“We believe the onus for excluding settlement demands must rest with the rights owner, not ISPs." – Jay Kerr-Wilson, Fasken
“We believe the onus for excluding settlement demands must rest with the rights owner, not ISPs, who currently face liability for failing to forward compliance notices,” he said, adding another recommendation BCBC members would like to see is the adoption of a common standard for infringement notices.
He pointed specifically to the Automated Copyright Notice System, which was jointly developed by ISPs and the motion picture industry, and according to Kerr-Wilson, reflects current Canadian requirements.
Another recommendation put forward by the BCBC is to put courts in a position that will require ISPs to disable access to infringing content on pre-loaded set-top boxes, or an order prohibiting credit card companies from processing payments for infringing service providers.
WHILE THE VIEWPOINTS discussed by other presenters, including the Canadian Intellectual Property Council and the Canadian Internet Policy and Public Interest Clinic, mostly aligned with what had been put forward by previous stakeholders, including BCBC and its members, the Public Interest Advocacy Centre (PIAC) drew a stark line in the sand with respect to its views.
John Lawford, executive director and general counsel for PIAC, said while the group opposed imposing a levy on ISPs, it otherwise vehemently disagreed with the bulk of the proposals put forth by the FairPlay initiative, of which the BCBC companies are members.
“Expedient judicial relief is available against intermediaries under the Copyright Act,” Lawford said. “FairPlay coalition members wish to replace the present judicial enforcement regime with an additional administrative regime. What matters most about this administrative process, aside from its duplicative nature, is that the process would likely be handled by the CRTC, which members hope would be able to employ a blanket blocking order on many alleged infringing websites on all telecommunication service providers.”
The CRTC recently decided not to hear the FairPlay application, saying it did not have the jurisdiction. Also, the Broadcasting, Telecommunications and Copyright Acts are all under review, each of which would affect the FairPlay proposals.
Playing devil’s advocate to many of the points raised by individual BCBC members, including copyright infringement continues to gather momentum, Lawford said the opposite appears to be happening. “Online copyright infringement appears to be in decline,” he said. “Canada’s broadcast industry is profitable and growing. Not only is the programming being pirated predominantly not Canadian, website blocking is generally not effective in reducing piracy.
“Increased revenues for broadcasters don’t mean an increase in the quantity or quality of content produced.”
Canadian Internet Policy and Public Interest Clinic Director David Fewer said his organization remains skeptical of the efficacy of website blocking in an attempt to clamp down on copyright issues.
“We already have significant provisions in the Copyright Act to allow copyright owners to go after businesses that are predicated upon copyright infringement, and would encourage copyright owners to use those mechanisms,” Fewer offered.
“I would like to see the failure of these provisions before we say they are inadequate for the task. I’m highly skeptical filtering solutions are going to address this. Filtering is always over-inclusive and under-inclusive.”
